Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations. (ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available. (vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence. (ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market. (x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements"). (xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
Appears in 2 contracts
Samples: Equity Underwriting Agreement (Unica Corp), Equity Underwriting Agreement (Unica Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-post effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and or (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and Regulations, which are not consolidated in the ProspectusCompany's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")Alex. Xxxxx & Sons Incorporated, provided, however, except that the Company may (i) may, without such consent, grant stock options, restricted stock or other stock-based awards to employees, consultants or directors options and issue shares upon the exercise of options issued pursuant to the terms of its plans in effect on the date hereof Company's 1996 Stock Option Plan and described in the Prospectus, (ii) 1996 Employee Stock Purchase Plan or issue shares as consideration for acquisitions (provided that the recipient of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition agrees not to offer, sell or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after dispose of such shares until the date expiration of this Agreement) equivalent to those set forth above in this sentencesuch 90 day period).
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offerdirectly or indirectly make or cause any offering, sell, sell short sale or otherwise dispose other disposition (not including the exercise of an option to purchase shares of Common Stock) of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Alex. Xxxxx & Sons Incorporated and except as otherwise provided in such letter agreement ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActProspectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, sale or other disposition (not including the exercise of an option to purchase shares of Common Stock) of Common Stock of the Company owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated and except as specifically provided in the Lockup Agreement delivered by such Selling Shareholder to the Underwriters.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Boston Communications Group Inc), Underwriting Agreement (Boston Communications Group Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters with respect to (i) through (x) below, and with the Selling Shareholders with respect to (i) through (v) only that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives or the Selling Shareholders shall not previously have been advised and furnished with a copy or to which the Representatives or the Selling Shareholders shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives and the Selling Shareholders in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies each Selling Shareholder one copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therein and will deliver to the Representatives such number of copies of the Registration Statement (including such number Statement, one of copies of the which will be signed and will include all exhibits filed therewith that may reasonably be requested)therewith, and documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the UnderwritersUnderwriters or the Selling Shareholders, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior The Company shall not (a) issue, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Closing DateSEC any registration statement relating to, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any additional shares of Common Stock of the Company its common stock or other securities convertible into or exchangeable or exercisable for any shares of its common stock, enter into a transaction which would have the Company's Common Stock same effect or derivative publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, or (b) grant any options whatsoever in respect of such Common Stock (or agreement for such)its shares, including except grants of employee stock options pursuant to the filing terms of any registration statement under a plan in effect on the Act (other than registration statements on Form S-8) or any other arrangement that transfers to anotherdate of this Agreement, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made each case for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Deutsche Bank Securities Inc. ("DBSI")the Representatives. The foregoing restrictions shall not apply to any registration statement, providedor any shares issued thereunder, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant relating to the terms Company's proposed acquisition of its plans in effect on Pennichuck Corporation, the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions issuance by the Company of assets, capital stock up to 150,000 Shares under the Company's shelf registration statements or businesses the issuance of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with shares under the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceCompany's Dividend Reinvestment and Direct Stock Purchase Plan.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(xviii) The Company has caused each executive officer and director, each Selling Shareholder, and each other shareholder and option holder director of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters ("LOCKUP AGREEMENTS"), pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of of, directly or indirectly, any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")the Representatives.
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiiiix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivx) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with each of the several Underwriters that:
(i) Each Selling Shareholder shall not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any additional shares of the Company's common stock or securities convertible into or exchangeable or exercisable for any shares of the Company's common stock, enter into a transaction which would have the same effect or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing for a period of 90 days after the date of this Agreement, without the prior written consent of the Representatives. The foregoing restrictions shall not apply to the proposed purchase by the Company of 2,500,000 shares from the Selling Shareholders, as described in the Registration and Share Purchase Agreement between the Company and the Selling Shareholders.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 2 contracts
Samples: Registration and Stock Purchase Agreement (Philadelphia Suburban Corp), Underwriting Agreement (Philadelphia Suburban Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus (or document incorporated by reference therein) of which the Representatives Representative shall not previously have been advised and furnished with a copy or to which the Representatives Representative shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(a) (ii) The Company will advise the Representatives Representative promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.. To the extent applicable, the copies of the Registration Statement and each amendment thereto (including all exhibits filed therewith), any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")BT Alex. Xxxxx, provided, however, except that the Company may may, without such consent, (iA) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors issue shares upon exercise of (1) options outstanding on the date of this Agreement issued pursuant to the terms of its plans in effect Company's 1993 Stock Option and 1998 Stock Plan and (2) warrants outstanding on the date hereof of this Agreement, and described in the Prospectus(B) grant options, (ii) issue offer to sell and sell shares of its Common Stock pursuant to: (A) the exercise of such options to its employees, directors and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) consultants pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence1998 Stock Plan.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq The NASDAQ National Stock Market.
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder shareholders holding [A MINIMUM OF ___%/IN THE AGGREGATE ___%] OF THE COMMON STOCK (INCLUDING ANY CAPITAL STOCK CONVERTIBLE INTO COMMON STOCK) of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or lettersletters (a "Lockup Agreement"), in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed for a period expiring 180 days after the date of the Prospectus not to offer, (A) offer to sell, sell short contract to sell, transfer or otherwise dispose of of, directly or indirectly, any shares of Common Stock of the Company or other capital stock of the Company, including shares of common stock of any series or class, any options, rights or warrants to purchase any shares of capital stock of the Company (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the capital stock of the Company) or any other securities convertibleconvertible into or exchangeable for shares of capital stock of the Company owned directly by the undersigned or with respect to which the undersigned has the power of disposition (including, exchangeable or exercisable for without limitation, shares of capital stock of the Company which the undersigned may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act; provided, however, that each such person may transfer shares of Common Stock or derivative options to purchase shares of Common Stock pursuant to a bona fide gift to such person's immediate family members, trusts for the benefit of such immediate family members and partnerships in which such immediate family members are the only partners if such transferee executes and delivers to BT Alex. Xxxxx Incorporated a Lockup Agreement in the same form and content, and with the same expiration date, as the Lockup Agreement signed by such person, or (B) engage in any hedging transactions (including short sales, put and call options, cashless collar transactions or other forms of derivative security transactions) with respect to the Common Stock owned by such person or request that may have an impact on the registration for the offer or sale of any market price of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")Common Stock.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make include such disclosures information with respect thereto in such reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) such Selling Shareholder shall not for the period beginning on the date hereof and expiring 180 days after the date of the Prospectus offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly, any shares of capital stock of the Company, including shares of common stock of any series or class, any options, rights or warrants to purchase any shares of capital stock of the Company (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the capital stock of the Company) or any securities convertible into or exchangeable for shares of capital stock of the Company owned directly by such person or with respect to which such person has the power of disposition (including, without limitation, shares of capital stock of the Company which such person may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act; provided, however, that each such person may transfer shares of Common Stock or options to purchase shares of Common Stock pursuant to a bona fide gift to such person's immediate family members, trusts for the benefit of such immediate family members and partnerships in which such immediate family members are the only partners if such transferee executes and delivers to BT Alex. Xxxxx Incorporated a Lockup Agreement in the same form and content, and with the same expiration date, as the Lockup Agreements referred to in Section 4(a)(x) hereof; or
(ii) such Selling Shareholder shall not for the period beginning on the date hereof and expiring 180 days after the date of the Prospectus engage in any hedging transactions (including short sales, put and call options, cashless collar transactions or other forms of derivative security transactions) with respect to the Common Stock that may have an impact on the market price of the Common Stock.
(iii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or and Form-8(or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iv) Such Selling Shareholder shall not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Dset Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) Prior to The Company will, for a period of three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and Regulations, which are not consolidated in the ProspectusCompany's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or a derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company except pursuant to the Company's 1995 Stock Option Plan, pursuant to the exercise of stock purchase warrants by the Selling Shareholder, or as otherwise than provided hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).Alex. Xxxxx &
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available to not consolidated in the Company, a copy of any unaudited interim 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusstatements.
(viii) No Except in connection with the issuance of shares of Common Stock (A) hereunder, (B) to holders of the Noteholder Warrants (as defined in the Registration Statement) upon the exercise of such Noteholder Warrants, (C) to Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx and Xxxx X. Xxxxx pursuant to the Company's 1996 Warrant Plan and (D) as disclosed in the Prospectus to the Memphis/Tunica Sellers, no offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company or the Selling Shareholders otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceAlex. Xxxxx & Sons Incorporated.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the The Nasdaq National Stock Market.
(x) The Company has caused each officer Xxxx X. Xxxxx and directorXxxxx Investment Associates V, each Selling ShareholderL.P. and Xxxxx Equity Partners V, and each other shareholder and option holder of L.P. (the Company listed on Schedule III hereto "Institutional Shareholders") to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters (the "Lockup Agreements"), pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except (i) with the prior written consent of DBSI Alex. Xxxxx & Sons Incorporated or ("Lockup Agreements"ii) with regard to the Institutional Shareholders, the foregoing restrictions shall not apply to a distribution of the shares of Common Stock to its partners or to the transfer to any affiliate of the Institutional Shareholders or to any other transferee in a private transaction not requiring registration under the Securities Act of 1933, as amended, or to any bona fide pledge of such shares of Common Stock, provided that such partner, affiliate or other transferee and/or lender or creditor acknowledges in writing that it is bound by the provisions of this Section 4(a)(x).
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActProspectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 ActAct or the rules and regulations thereunder.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than (A) hereunder or (B) with the prior written consent of Alex. Xxxxx & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Universal Outdoor Holdings Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters and the Selling Shareholders that:
(i) The Company will (Ai) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and Regulations, (Bii) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The , and the Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (Statement, including such number of copies of the exhibits filed therewith that may reasonably be requested)documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Securities Exchange Act of 1934 which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 18 months after the effective date of the Registration Statement, an earnings earning -- statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and Regulations, which are not consolidated in the ProspectusCompany's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 120 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, the Representatives except that the Company may (i) grant stock optionsmay, restricted stock or other stock-based awards to employeeswithout such consent, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) upon the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in from the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares to be sold by it hereunder substantially in such a manner as would require accordance with the Company or any of description in the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the CompanyProspectus.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters and the Company that:
(i) For a period of 90 days after the date of this Agreement, he will not offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Common Stock) or any securities convertible into or exchangeable for shares of Common Stock owned directly by such Selling Shareholder with respect to which he has the power of disposition (including, without limitation, shares of Common Stock that he may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act), or (ii) engage in any hedging transactions with respect to the Common Stock that may have an impact on the market price of the Common Stock, otherwise than hereunder or with the prior written consent of the Representatives.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at on the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing promptly after having been furnished a copy, or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the CommissionCommission relating to the Prospectus, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purposepurpose and (E) of any other notice or communication, written or oral, to or from the Commission between the date of the Agreement and 30 days after the date of this Agreement. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments and supplements thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, rule or regulation the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law, rule or regulation.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any shares of Class A Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Class A Common Stock or derivative of such Class A Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company or any of the Subsidiaries otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that except (A) issuances of Capital Stock pursuant to the Company may (i) grant stock conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, restricted in each case, outstanding or acquisitions pending on the date of this Agreement, (B) grants of employee stock or other stock-based awards to employees, consultants or directors options pursuant to the terms of its a plan in effect on this date of this Agreement, issuance of capital stock pursuant to the exercise of such options or issuances of capital stock pursuant to employee stock purchase plans, incentive, benefit and dividend reinvestment plans in effect on the date hereof of this Agreement and described in the Prospectus, (iiC) issue offers of shares of its Common Capital Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceacquisitions.
(ixviii) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq National Market.
(xix) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Class A Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such shares of Class A Common Stock or derivative of such shares of Class A Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI (collectively, the "Lockup Agreements"). The Company will not waive any agreement by any person or entity not to offer, sell, sell short or otherwise dispose of any shares of Class A Common Stock or any other securities convertible, exchangeable or exercisable for shares of Class A Common Stock or derivative of shares of Class A Common Stock owned by such person or entity, in each case without the prior written consent of DBSI.
(xix) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActProspectus.
(xiixi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act0000 Xxx.
(xiiixii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Class A Common Stock.
(xivxiii) The Company will not, and will not authorize any of its Subsidiaries or any of its or their respective officers or directors (or any of the directors' or officers' respective affiliates) to take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders severally covenants and agrees with the several Underwriters that:
(i) Other than as contemplated by this Agreement, no offering, sale, short sale or other disposition of any shares of Class A Common Stock or other securities convertible, exchangeable or exercisable for Class A Common Stock or derivative of Class A Common Stock owned by such Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of DBSI. Notwithstanding the foregoing, such Selling Shareholder may, without the consent of DBSI, convert any shares of Capital Stock that it owns into shares of Class A Common Stock or transfer any shares of Class A Common Stock or securities convertible into or exchangeable or exercisable for Class A Common Stock; provided, however, that prior to any such transfer, each transferee shall execute an agreement, satisfactory to DBSI pursuant to which each transferee shall agree to receive and hold such shares of Class A Common Stock, or securities convertible into or exchangeable or exercisable for Class A Common Stock, subject to the provisions hereof, and there shall be no further transfer except in accordance with the provisions hereof.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the such Selling Shareholders Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company in violation of the Exchange Act.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters with respect to (i) through (x) below, and with the Selling Shareholders with respect to (i) through (v) only that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives or the Selling Shareholders shall not previously have been advised and furnished with a copy or to which the Representatives or the Selling Shareholders shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives and the Selling Shareholders in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies each Selling Shareholder one copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therein and will deliver to the Representatives such number of copies of the Registration Statement (including such number Statement, one of copies of the which will be signed and will include all exhibits filed therewith that may reasonably be requested)therewith, and documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the UnderwritersUnderwriters or the Selling Shareholders, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior The Company shall not (a) issue, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Closing DateSEC any registration statement relating to, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any additional shares of Common Stock of the Company its common stock or other securities convertible into or exchangeable or exercisable for any shares of its common stock, enter into a transaction which would have the Company's Common Stock same effect or derivative publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, or (b) grant any options whatsoever in respect of such Common Stock (or agreement for such)its shares, including except grants of employee stock options pursuant to the filing terms of any registration statement under a plan in effect on the Act (other than registration statements on Form S-8) or any other arrangement that transfers to anotherdate of this Agreement, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made each case for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Deutsche Bank Securities Inc. ("DBSI")the Representatives. The foregoing restrictions shall not apply to any registration statement, providedor any shares issued thereunder, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant relating to the terms Company's proposed acquisition of its plans in effect on Pennichuck Corporation, the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions issuance by the Company of assets, capital stock up to 150,000 Shares under the Company's shelf registration statements or businesses the issuance of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with shares under the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceCompany's Dividend Reinvestment and Direct Stock Purchase Plan.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(xviii) The Company has caused each executive officer and director, each Selling Shareholder, and each other shareholder and option holder director of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters ("Lockup Agreements"), pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of of, directly or indirectly, any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")the Representatives.
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiiiix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivx) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with each of the several Underwriters that:
(i) Each Selling Shareholder shall not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any additional shares of the Company's common stock or securities convertible into or exchangeable or exercisable for any shares of the Company's common stock, enter into a transaction which would have the same effect or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing for a period of 90 days after the date of this Agreement, without the prior written consent of the Representatives. The foregoing restrictions shall not apply to the Option Shares (to the extent the Underwriters' over-allotment option is exercised) or the proposed purchase by the Company of 2,500,000 shares from the Selling Shareholders, as described in the Registration and Share Purchase Agreement between the Company and the Selling Shareholders.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Philadelphia Suburban Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement and the ADS Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives Representative shall not previously have been advised and furnished with a copy or to which the Representatives Representative shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Offered Securities by the Underwriters.
(ii) The Company will advise the Representatives Representative promptly (A) when the Registration Statement and the ADS Registration Statement (if its effectiveness is subsequent to the execution and delivery of this Agreement) or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives Representative in endeavoring to qualify the Shares Offered Securities for sale under the securities laws of such jurisdictions as the Representatives Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives Representative may reasonably request for distribution of the SharesOffered Securities.
(iv) The Company will deliver to, or upon the order of, the RepresentativesRepresentative, from time to time, as many copies of any Preliminary Prospectus as the Representatives Representative may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representative during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives Representative may reasonably request. The Company will deliver to the Representatives Representative at or before the Closing Date, four signed copies of each of the Registration Statement and the ADS Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives Representative such number of copies of the Registration Statement and the ADS Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives Representative may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares Offered Securities as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for For a period of 180 days after the date of this Agreementthe initial public offering of the Offered Securities, the Company will not, and shall procure its Subsidiaries, its officers, directors and specified shareholders not to, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, by or file with the Company otherwise than hereunder Commission a registration statement under the Act relating to, any additional Shares or with ADSs or securities convertible into or exchangeable or exercisable for any Shares or ADSs, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Deutsche Bank Securities Inc. ("DBSI")Inc., provided, however, that the Company may (i) grant except grants of employee stock options, restricted stock or other stock-based awards to employees, consultants or directors options pursuant to the terms of its plans a plan in effect on the date hereof and described in the Prospectus, (ii) issue shares issuances of its Common Stock Shares pursuant to: (A) to the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceoptions.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation Offered Securities on the Nasdaq National Market. In connection with the application to quote the Offered Securities on the Nasdaq National Market, the Company will furnish from time to time any and all documents, instruments, information and undertakings and publish all advertisements or other material that may be necessary in order to effect and maintain such quotation.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of shall cause SMI Taiwan to implement the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, three conditions as described in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except Prospectus in accordance with the prior written consent of DBSI ("Lockup Agreements")IC approvals referred to in Section 1(a)(xxxviii) hereof.
(xi) The Company will ensure that it is in compliance with other applicable provisions of the Xxxxxxxx-Xxxxx Act and the corporate governance rules of the Nasdaq National Market upon the effectiveness of such provisions upon the subsequent release by the Commission of rules and regulations promulgated under the Xxxxxxxx-Xxxxx Act.
(xii) The Company shall apply the net proceeds of its sale of Shares the Offered Securities as set forth in the Prospectus under the caption “Use of Proceeds” and shall make file such disclosures in reports filed with the Commission with respect to the sale of such Shares the Offered Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xiixiii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares Offered Securities in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiiixiv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stockcapital stock of the Company.
(xivxv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company in violation of Regulation M under the Exchange Act.
(xvi) No action has been or, prior to the completion of the distribution of the Offered Securities, will be taken by the Company in any jurisdiction outside the United States and Canada that would permit a public offering of the Offered Securities, or possession or distribution of the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus issued in connection with the offering of the Offered Securities, or any other offering material, in any country or jurisdiction where action for that purpose is required.
(xvii) The Company will comply with the terms of the Deposit Agreement so that the ADRs will be executed by the Depositary and delivered to the Underwriters pursuant to this Agreement, at the applicable Closing Date.
(xviii) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Securities and on the execution and delivery of this Agreement or the Deposit Agreement.
(xix) The Company will cause Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands counsel for the Company, to issue an opinion as soon as practicable, but in no event later than the third day after the First Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters to the effect that: the persons entered in the Register of Members of the Company have been duly registered as the holders of the relevant shares in accordance with the Memorandum and Articles of Association; each person who has agreed to become a member of the Company and whose name is entered in the Register of Members is deemed to be a member of the Company and, accordingly, has the rights of a member, inter alia, as provided for in the Articles of Association.
(xx) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(b) Each of the Selling Shareholders Shareholders, severally and not jointly, covenants and agrees with each of the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any Shares, ADSs or other capital stock of the Company or other securities convertible, exchangeable or exercisable for the Shares, ADSs or derivative of the Shares or ADSs owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of the Representative.
(ii) In order to document the Underwriters' ’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(iv) Such Selling Shareholder will make the necessary filing with the IC under ROC law to report sale of the shares to the Company or to make any investments with the Company, except where such filing is not required by law.
Appears in 1 contract
Samples: Underwriting Agreement (Silicon Motion Technology CORP)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) Prior to The Company will, for a period of three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and Regulations, which are not consolidated in the ProspectusCompany's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or a derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company except pursuant to the Company's 1995 Stock Option Plan, or as otherwise than provided hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).Alex. Xxxxx &
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.. To the extent applicable, the copies of the Registration Statement (including all exhibits filed therewith), any Preliminary Prospectus or Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed with the Commission on XXXXX, except to the extent permitted by Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available not consolidated in the Company's financial statements. To the extent applicable, such reports and documents shall be identical to the Companycopies thereof electronically filed with the Commission on XXXXX, a copy of any unaudited interim financial statements of the Company for any period subsequent except to the period covered extent permitted by the most recent financial statements appearing in the Registration Statement and the Prospectus.Regulation S-T.
(viii) No offering, sale, short sale The Company will not sell or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreementotherwise dispose of, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue any shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) for a period of 90 days after the date of this Agreement otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated except that the Company may, without such consent, (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to any such acquisition or agreement shall enter into its [1982 Stock Option Plan, as amended, the 1992 Stock Option Plan and the 1995 Stock Option Plan] and (B) grant options and offer to sell shares of Common Stock to its employees and directors pursuant to the plans listed in clause (A). The Company will not file a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 registration statement on Form S-8 under the Act until 90 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq NASDAQ National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, offer to sell, sell short contract to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Company or other capital stock of the Company, Common Stock) or any other securities convertible, convertible into or exchangeable or exercisable for such shares of Common Stock or derivative of such engage in any hedging transactions with respect to the Common Stock owned by such person or request that may have an impact on the registration for the offer or sale of any market price of the foregoing (or as to which such person has the right to direct the disposition of) Common Stock for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Alex. Xxxxx & Sons Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares substantially as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActProspectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the CompanyCompany in violation of the Act or the Rules and Regulations or the Exchange Act and the rules and regulations of the Commission thereunder.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) Such Selling Shareholder will not offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Common Stock) or any securities convertible into or exchangeable for shares of Common Stock or engage in any hedging transactions with respect to the Common Stock that may have an impact on the market price of the Common Stock for a period of 90 days after the date of this Agreement, otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company in violation of the Act or the Rules and Regulations or the Exchange Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Ade Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and the ProspectusRegulations, which are not consolidated inthe Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or a derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company except pursuant to the Company's 1995 Incentive Stock Option Plan, as otherwise than provided hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).Alex. Xxxxx &
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent In the event of the issuance of any such stop order preventing or suspending the use of the Prospectus and Prospectus, the Company will use its best efforts to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ) and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its shareholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available to not consolidated in the Company, a copy of any unaudited interim 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusstatements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. BT Alex. Browx Xxxorporated. The foregoing sentence shall not apply to (A) shares of Common Stock issued by the Company upon the exercise of options granted under the stock option plans of the Company in existence as of the date hereof (the "DBSIOption Plans"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) options to purchase Common Stock granted under the exercise of any employee stock options outstanding on the date hereofOption Plans, and (iiiC) issue shares of its Common Stock or other securities convertible into options or exchangeable or exercisable for shares of its warrants to purchase Common Stock issued or derivative of its Common Stock (or enter into agreements for such) granted in connection with one acquisitions or more acquisitions corporate stategic partner transactions approved by the Company Company's Board of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceDirectors.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the the Nasdaq National Stock Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder director of the Company listed on Schedule III hereto and the Selling Shareholders to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, sell, sell short short, pledge or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI BT Alex. Browx Xxxorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale, pledge or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Browx Xxxorporated (the "Lockup Agreements").
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Smith Gardner & Associates Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of conformed copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act, ") and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of three years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusamended.
(viii) No offering, sale, short sale or other disposition (or agreement for such) of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")BT Alex. Xxxxx Incorporated, provided, however, except that the Company may foregoing shall not apply to: (i) grant stock optionsshares issued in any acquisition by the Company, restricted stock (ii) the Shares and shares or other stock-based awards to employees, consultants or directors securities issued pursuant to the terms of its employee benefit plans, stock options plans in effect or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights and (iii) shares issued upon exercise of options granted under the Company's stock option plan described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the The Nasdaq Stock Market (National Market).
(x) The Company has caused each officer officer, director and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto Shareholder to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI BT Alex. Xxxxx Incorporated ("Lockup Agreements"); provided, however, that transfers pursuant to applicable laws of -------- descent and distribution and transfers within the person's Family Group (where, "Family Group") means spouse, siblings and descendants (whether natural or adopted) and any of such descendant's spouses), to any trust which at the time of such transfer and at all times thereafter is and remains solely for the benefit of such person or such person's Family Group, or to any family partnership, the partners of which consists solely of such person, such person's Family Group and/or such trusts, shall not be prohibited so long as such transferee or transferees shall first have executed a letter or letters containing the prohibitions on transfer referred to above in this paragraph (x).
(xi) The Company shall apply the net proceeds of its the sale of the Firm Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActProspectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx Incorporated, except to the extent permitted by paragraph (a)(x) of this Section.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Colorado Greenhouse Holdings Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.. To the extent applicable, the copies of the Registration Statement (including all exhibits filed therewith), any Preliminary Prospectus or Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed with the Commission on XXXXX, except to the extent permitted by Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel to the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its shareholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. To the extent applicable, a copy of any unaudited interim financial statements of the Company for any period subsequent such reports and documents shall be identical to the period covered copies thereof electronically filed with the Commission on XXXXX, except to the extent permitted by the most recent financial statements appearing in the Registration Statement and the Prospectus.Regulation S-T.
(viii) No offeringThe Company will not issue, sale, short sale sell or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreementotherwise dispose of, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue any shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) for a period of 180 days after the date of this Agreement otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to its 1991 Amended and Restated Stock Option Plan, 1996 Non-Employee Directors Stock Option Plan and 1996 Employee and Consultant Stock Option Plan and (B) grant options and offer to sell shares of Common Stock to its employees and directors pursuant to the plans listed in clause (A), provided that the Company will not grant any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for options which will become exercisable within 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish be furnished to you, on or prior to the date of this Agreement, a letter or letters, in the form provided letters executed by DBSI, pursuant to which (i) each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock officer and director of the Company, substantially in the form attached hereto as Exhibit A-1; (ii) certain shareholders of the Company, substantially in the form attached hereto as Exhibit A-1 or any other securities convertible, exchangeable or exercisable for such A-2; and (iii) each holder of options to purchase Common Stock or derivative of such Common Stock owned by such person or request (other than the registration for officers and directors referred to in clause (i) above), substantially in the offer or sale of any of the foregoing (or form attached hereto as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")Exhibit A-3.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) Such Selling Shareholder has furnished to you, on or prior to the date of this Agreement, a letter or letters substantially in the form attached hereto as Exhibit A-1 or A-2 (such letters of the Selling Shareholders and the letters referred to in Section 4(a)(x) being collectively referred to as the "Lockup Agreements").
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the such Selling Shareholders Shareholder agrees to deliver to you the Representatives prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Information Management Associates Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself to taxation in any jurisdiction where it is not now so qualified or required to file such a consentconsent or subject to taxation. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four one signed copies copy of the Registration Statement and two signed copies of all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No Except as otherwise provided in a prior written consent of Wedbush Xxxxxx Securities Inc. after the date hereof, no offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. Company, other than: ("DBSI"), provided, however, that the Company may (ia) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, this Agreement; (iib) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions contributed by the Company of assets, capital stock or businesses of unaffiliated persons or entities to its 401(k) plan; and (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for suchc) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after stock options granted by the date Company to employees and directors in the ordinary course of this Agreement) equivalent to those set forth above in this sentencebusiness.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the The Nasdaq National Market.
(x) The Company has caused each officer officer, director and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed set forth on Schedule III IV hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such shares of Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Wedbush Xxxxxx Securities Inc. ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActProspectus.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Wedbush Xxxxxx Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (A) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (B) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus, so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its shareholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available to not consolidated in the Company, a copy of any unaudited interim 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusstatements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")Alex. Browx & Xons Incorporated, provided, however, except that the Company may (i) grant stock optionsmay, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectuswithout such consent, (iiA) issue shares of its Common Stock pursuant to: (A) upon the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereofof this Agreement issued pursuant to its 1995 Stock Option Plan, and (iiiB) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for upon the exercise of stock options and purchase rights granted after the date hereof under the 1995 Stock Option Plan and the 1996 Employee Stock Purchase Plan and (C) issue shares of its Common Stock in respect of the Company's acquisition of the stock or derivative assets of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions another entity so long as the shares so issued by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for may not be resold until 180 days after the date of this Agreement. The Company shall not file with the Commission any registration statements (including without limitation any registration statements on Form S-8 or any successor form) equivalent with respect to those set forth above in any stock option, stock purchase, restricted stock or other similar plans until at least 90 days following the date of this sentenceAgreement.
(ix) The Company will use its best efforts to list the Shares have its Common Stock authorized for quotation inclusion on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Alex. Browx & Xons Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Browx & Xons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Geotel Communications Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.. To the extent applicable, the copies of the Registration Statement (including all exhibits filed therewith), any Preliminary Prospectus or Prospectus furnished to the Underwriters shall be identical to the copies thereof electronically filed with the Commission on XXXXX, except to the extent permitted by Regulation S-T.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel to the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.its shareholders
(viii) No offeringThe Company will not issue, sale, short sale sell or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreementotherwise dispose of, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue any shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) for a period of 180 days after the date of this Agreement otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated, except that the Company may, without such consent, (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to its 1991 Amended and Restated Stock Option Plan, 1996 Non-Employee Directors Stock Option Plan and 1996 Employee and Consultant Stock Option Plan, (B) grant options and offer to sell shares of Common Stock to its employees and directors pursuant to the plans listed in clause (A), provided that the Company will not grant any options which will become exercisable within 180 days after the date of this Agreement and (C) issue shares of Common Stock to its employees pursuant to the Employee Stock Purchase Plan, provided that the Company will not permit the withdrawal of such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing shares from the plan for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish be furnished to you, on or prior to the date of this Agreement, a letter or letters, in the form provided letters executed by DBSI, pursuant to which (i) each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock officer and director of the Company, substantially in the form attached hereto as Exhibit A-1; (ii) certain shareholders of the Company, substantially in the form attached hereto as Exhibit A-1 or any other securities convertible, exchangeable or exercisable for such A-2; and (iii) each holder of options to purchase Common Stock or derivative of such Common Stock owned by such person or request (other than the registration for officers and directors referred to in clause (i) above), substantially in the offer or sale of any of the foregoing (or form attached hereto as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")Exhibit A-3.
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) Such Selling Shareholder has furnished to you, on or prior to the date of this Agreement, a letter or letters substantially in the form attached hereto as Exhibit A-1 or A-2 (such letters of the Selling Shareholders and the letters referred to in Section 4(a)(x) being collectively referred to as the "Lockup Agreements").
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the such Selling Shareholders Shareholder agrees to deliver to you the Representatives prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Information Management Associates Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement and the ADS Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives Representative shall not previously have been advised and furnished with a copy or to which the Representatives Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives Representative promptly (A) when the Registration Statement and the ADS Registration Statement (if its effectiveness is subsequent to the execution and delivery of this Agreement) or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives Representative in endeavoring to qualify the Shares Offered Securities for sale under the securities laws of such jurisdictions as the Representatives Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives Representative may reasonably request for distribution of the SharesOffered Securities.
(iv) The Company will deliver to, or upon the order of, the RepresentativesRepresentative, from time to time, as many copies of any Preliminary Prospectus as the Representatives Representative may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representative during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives Representative may reasonably request. The Company will deliver to the Representatives Representative at or before the Closing Date, four signed copies of each of the Registration Statement and the ADS Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives Representative such number of copies of the Registration Statement and the ADS Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives Representative may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares Offered Securities as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law the Act or the rules and regulations promulgated by the Commission thereunder to be delivered in connection with sales of the Offered Securities, including by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition For a period of any shares of Common Stock 180 days (the “Initial Lock-Up Period”) after the date of the initial public offering of the Offered Securities, the Company will not, and shall procure its Subsidiaries, its officers, directors and specific shareholders not to, offer, sell, contract to sell, pledge or other otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional Shares or ADSs or securities convertible into or exchangeable or exercisable for shares of any Shares or ADSs, or publicly disclose the Company's Common Stock intention to make any such offer, sale, pledge, disposition or derivative of such Common Stock (or agreement for such)filing, including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Deutsche Bank Securities Inc. ("DBSI")Inc., provided, however, that the Company may (i) grant except grants of employee stock options, restricted stock or other stock-based awards to employees, consultants or directors options pursuant to the terms of its plans a plan in effect on the date hereof and described in issuances of Shares pursuant to the Prospectusexercise of such options; provided, however, that if (ii1) issue shares during the last 17 days of its Common Stock pursuant to: the Initial Lock-Up Period, (A) the exercise of such options and stock-based awards and Company releases earnings results or (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock material news or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by a material event relating to the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise)occurs, or in connection with (2) prior to the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities expiration of the Initial Lock-Up Period, the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a announces that it will release earnings results during the 16-day period following the last day of the Initial Lock-Up Period, then in each case the lock-up period continuing for 180 days after will be extended until the expiration of the 18-day period beginning on the date of this Agreement) equivalent the release of the earnings results or the occurrence of material news or a material event relating to those set forth above the Company, as the case may be, unless Deutsche Bank Securities Inc. waives, in this sentencewriting, such extension.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation Offered Securities on the Nasdaq National Market. In connection with the application to quote the Offered Securities on the Nasdaq National Market, the Company will furnish from time to time any and all documents, instruments, information and undertakings and publish all advertisements or other material that may be necessary in order to effect and maintain such quotation.
(x) The Company has caused each officer and director, each Selling Shareholder, and each will ensure that it is in compliance with other shareholder and option holder applicable provisions of the Company listed on Schedule III hereto to furnish to you, on or prior to Xxxxxxxx-Xxxxx Act and the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock corporate governance rules of the Company or other capital stock of Nasdaq National Market upon the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative effectiveness of such Common Stock owned provisions upon the subsequent release by such person or request the registration for Commission of rules and regulations promulgated under the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")Xxxxxxxx-Xxxxx Act.
(xi) The Company shall apply the net proceeds of its sale of Shares the Offered Securities as set forth in the Prospectus under the caption “Use of Proceeds” and shall make file such disclosures in reports filed with the Commission with respect to the sale of such Shares the Offered Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) [The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Shares Offered Securities in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.]
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stockcapital stock of the Company.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(xv) No action has been or, prior to the completion of the distribution of the Offered Securities, will be taken by the Company in any jurisdiction outside the United States and Canada that would permit a public offering of the Offered Securities, or possession or distribution of the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus issued in connection with the offering of the Offered Securities, or any other offering material, in any country or jurisdiction where action for that purpose is required.
(xvi) The Company will comply with the terms of the Deposit Agreement so that the ADRs will be executed by the Depositary and delivered to the Underwriters pursuant to this Agreement, at the applicable Closing Date.
(xvii) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Securities and on the execution and delivery of this Agreement or the Deposit Agreement.
(b) Each of the Selling Shareholders Shareholders, severally and not jointly, covenants and agrees with the several Underwriters that:
(i) Each Selling Shareholder shall comply with the terms of the lock-up agreement entered into by such Selling Shareholder and the Underwriters, substantially in the form attached hereto as Annex A.
(ii) In order to document the Underwriters' ’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (eLong, Inc.)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (A) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (B) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus, so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its shareholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available to not consolidated in the Company, a copy of any unaudited interim 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusstatements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")Alex. Browx & Xons Incorporated, provided, however, except that the Company may may, without such consent, issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to its 1995 Stock Option Plan. The Company shall not file with the Commission any registration statements (iincluding without limitation any registration statements on Form S-8 or any successor form) grant with respect to any stock optionsoption, stock purchase, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its similar plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 until at least 90 days after following the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares have its Common Stock authorized for quotation inclusion on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Alex. Browx & Xons Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Browx & Xons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Underwriting Agreement (Geotel Communications Corp)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and Regulations, which are not consolidated in the ProspectusCompany's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceAlex. Xxxxx & Sons Incorporated.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq Stock Market (National Market).
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Alex. Xxxxx & Sons Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) A. The ----------------------------------------------------- Company covenants and agrees with the several Underwriters that:
(ia) The Company will (A) use its best efforts to cause the Registration Statement and any amendment thereof to become effective or, if the procedure in Rule 430A of the Rules as promptly as possible and Regulations is followed, to prepare and timely file with the Commission under Rule 424(bwill notify you immediately (i) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of when the Registration Statement in reliance on Rule 430A and any amendments thereof become effective, (ii) of any request by the Rules and Regulations and (B) not file Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (Diii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceedings therefor, (iv) of the receipt of any comments from the Commission, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain the lifting of such order as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably requestpossible. The Company will deliver to, not file any amendment to the Registration Statement or upon the order of, the Representatives during the period when delivery any amendment of a Prospectus is required under the Act, as many copies of or supplement to the Prospectus in final form, before or as thereafter amended or supplemented, as after the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may which you shall reasonably be requested), and of all amendments thereto, as the Representatives may reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(vb) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as If at any time when a prospectus relating to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, under the Act any event shall occur have occurred as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with any lawthe Act or the Regulations, the Company will notify you promptly will and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus declared effective as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawsoon as possible.
(vic) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company will promptly deliver to each of the several Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders, holders and to you as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration StatementStatement occurs, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, audited but which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRegulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement.
(viif) Prior Except pursuant to this Agreement, during a period of 90 days from the Closing Datedate of the Prospectus, the Company will not, without your prior written consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock, other than pursuant to existing employee benefit plans and agreements and other existing compensation agreements), and the Company will obtain the undertaking of each of its officers and directors and such of its shareholders as have been heretofore designated by you not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of presently outstanding stock options.
(g) During a period of five years from the effective date of the Registration Statement, the Company will furnish to the UnderwritersRepresentatives copies of (i) all reports to its shareholders; and (ii) all reports, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange.
(h) The Company will apply the proceeds from the sale of the Company for any period subsequent to the period covered by the most recent financial statements appearing Shares as set forth under "Use of Proceeds" in the Registration Statement and the Prospectus.
(viiii) No offeringThe Company will, salefrom time to time, short sale or other disposition of any shares of Common Stock after the effective date of the Company or other securities convertible into or exchangeable or exercisable for shares of Registration Statement file with the Company's Common Stock or derivative of Commission such Common Stock (or agreement for such), including the filing of any registration statement under reports as are required by the Act and the Regulations and shall also file with state securities commissions in states where the Shares have been sold by you (other than registration statements on Form S-8as you shall have advised us in writing) or any other arrangement that transfers such reports as are required to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, filed by the Company otherwise than hereunder or with securities act and the prior written consent regulations of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentencestates.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivj) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted which might constitute or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities the shares of the CompanyCommon Stock.
(b) B. Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(a) Except pursuant to this Agreement, in order to document during a period of 90 days from the Underwriters' compliance with the reporting and withholding provisions date of the Tax Equity and Fiscal Responsibility Act Prospectus, such Selling Shareholder will not, without your prior written consent, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any shares of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect Common Stock.
(b) Such Selling Shareholder will not take, directly or indirectly, any action designed to the transactions herein contemplatedcause or result in, each or which might constitute or reasonably be expected to constitute, stabilization or manipulation of the Selling Shareholders agrees to deliver to you prior to or at price of the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)shares of Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Miller Industries Inc /Tn/)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters with respect to (i) through (x) below, and with the Selling Shareholders with respect to (i) through (v) only that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives or the Selling Shareholders shall not previously have been advised and furnished with a copy or to which the Representatives or the Selling Shareholders shall have reasonably objected in writing or which is not in compliance with the Rules and RegulationsRegulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ii) The Company will advise the Representatives and the Selling Shareholders promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives and the Selling Shareholders in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies each Selling Shareholder one copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therein and will deliver to the Representatives such number of copies of the Registration Statement (including such number Statement, one of copies of the which will be signed and will include all exhibits filed therewith that may reasonably be requested)therewith, and documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the UnderwritersUnderwriters or the Selling Shareholders, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior The Company shall not (a) issue, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Closing DateSEC any registration statement relating to, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any additional shares of Common Stock of the Company its common stock or other securities convertible into or exchangeable or exercisable for any shares of its common stock, enter into a transaction which would have the Company's Common Stock same effect or derivative publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, or (b) grant any options whatsoever in respect of such Common Stock (or agreement for such)its shares, including except grants of employee stock options pursuant to the filing terms of any registration statement under a plan in effect on the Act (other than registration statements on Form S-8) or any other arrangement that transfers to anotherdate of this Agreement, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made each case for a period of 180 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with without the prior written consent of Deutsche Bank Securities Inc. ("DBSI")the Representatives. The foregoing restrictions shall not apply to any registration statement, providedor any shares issued thereunder, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant relating to the terms Company's proposed acquisition of its plans in effect on Pennichuck Corporation, the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions issuance by the Company of assets, capital stock up to 150,000 Shares under the Company's shelf registration statements or businesses the issuance of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with shares under the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceCompany's Dividend Reinvestment and Direct Stock Purchase Plan.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(xviii) The Company has caused each executive officer and director, each Selling Shareholder, and each other shareholder and option holder director of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters ("Lockup Agreements"), pursuant to which each such person has agreed shall agree not to offer, sell, sell short or otherwise dispose of of, directly or indirectly, any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")the Representatives.
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiiiix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivx) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with each of the several Underwriters that:
(i) Each Selling Shareholder shall not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any additional shares of the Company's common stock or securities convertible into or exchangeable or exercisable for any shares of the Company's common stock, enter into a transaction which would have the same effect or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing for a period of 90 days after the date of this Agreement, without the prior written consent of the Representatives. The foregoing restrictions shall not apply to the proposed purchase by the Company of 2,500,000 shares from the Selling Shareholders, as described in the Registration and Share Purchase Agreement between the Company and the Selling Shareholders.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Registration and Stock Purchase Agreement (Philadelphia Suburban Corp)
Covenants of the Company and the Selling Shareholders. (a) A. The Company covenants and agrees with the several Underwriters that:
(ia) The Company will (A) use its best efforts to cause the Registration Statement and any amendment thereto to become effective or, if the procedure in Rule 430A of the Rules as promptly as possible and Regulations is followed, to prepare and timely file with the Commission under Rule 424(bwill notify you immediately (i) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of when the Registration Statement in reliance on Rule 430A and any amendments thereto become effective, (ii) of any request by the Rules and Regulations and (B) not file Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (Diii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceedings therefor, (iv) of the receipt of any comments from the Commission, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain the lifting of such order as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably requestpossible. The Company will deliver to, not file any amendment to the Registration Statement or upon the order of, the Representatives during the period when delivery any amendment of a Prospectus is required under the Act, as many copies of or supplement to the Prospectus in final form, before or as thereafter amended or supplemented, as after the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may which you shall reasonably be requested), and of all amendments thereto, as the Representatives may reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(vb) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as If at any time when a prospectus relating to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, under the Act any event shall occur have occurred as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, or to file under the Exchange Act so as to comply therewith any lawdocument incorporated by reference in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly will and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) that will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus declared effective as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawsoon as possible.
(vic) The Company will promptly deliver to you two signed copies of the Registration Statement, including exhibits and all documents incorporated by reference therein, and all amendments thereto, and the Company will promptly deliver to each of the several Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and the Prospectus or any amendment thereof or supplement thereto, without exhibits, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares in such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders, holders and to you as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration StatementStatement occurs (or not later than 90 days after the end of such fiscal quarter if such fiscal quarter is the last fiscal quarter of the fiscal year), an earnings statement (which need not be auditedaudited but which shall satisfy the provisions of Section 11(a) in reasonable detail, of the Act) covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(viif) Prior During a period of 90 days from the date of the Prospectus, the Company will not, without your prior written consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any Class A Common Stock (or any securities convertible into, exercisable for or exchangeable for Class A Common Stock), and the Company will obtain the under taking of each person who is an executive officer and/or director as of the date of this Agreement not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder, the Company's issuance of Class A Common Stock upon the exercise of presently outstand ing stock options, grants of employee options pursuant to the Closing DateCompany's employee stock purchase plan, the grant of options to directors of the Company as provided in the Company's director stock option plan and the issuance of shares of Class A Common Stock upon exercise thereof, and in connection with acquisitions.
(g) During a period of three years from the effective date of the Registration Statement, the Company will furnish to the UnderwritersRepresentatives, as soon as they have been prepared by or are available upon request, copies of (i) all reports to the Companyits shareholders, a copy of any unaudited interim and (ii) all reports, financial statements of and proxy or information statements filed by the Company for with the Commission or any period subsequent to national securities exchange or quotation system upon which the period covered by the most recent financial statements appearing in the Registration Statement and the ProspectusClass A Common Stock may be listed.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivh) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitutecause or result in (i) stabilization of the price of the Class A Common Stock to facilitate the sale or resale of the Class A Common Stock, the stabilization or (ii) manipulation of the price of any securities of the CompanyClass A Common Stock.
(bi) Each The Company will take, and will cause its subsidiaries to take, such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus and will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act, and the rules and regulations thereunder.
B. Each Selling Shareholders Shareholder severally covenants and agrees with the several Underwriters that, in order to document that during a period of 90 days from the Underwriters' compliance with the reporting and withholding provisions date of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect Prospectus, such Selling Shareholder will not, without your prior written consent, sell, offer or agree to the transactions herein contemplatedsell, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 otherwise dispose of, directly or W-9 indirectly, any Class A Common Stock (or other applicable form any securities convertible into, exercisable for or statement specified by Treasury Department regulations in lieu thereofexchangeable for Class A Common Stock).
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) A. The Company covenants and agrees with the several Underwriters that:
(ia) The Company will (A) use its best efforts to cause any amendment to the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules as promptly as possible and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by will notify the Representatives containing information previously omitted at the time of effectiveness of immediately (i) when any amendments to the Registration Statement in reliance on Rule 430A become effective, (ii) of any request by the Rules and Regulations and (B) not file Commission for any amendment of or supplement to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (Diii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus any post-effective amendment thereto or of the institution initiation, or the threatening, of any proceedings therefor, (iv) of the receipt of any comments from the Commission, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. The If the Commission shall propose or enter a stop order at any time, the Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain the lifting of such order as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably requestpossible. The Company will deliver to, not file any amendment to the Registration Statement or upon the order of, the Representatives during the period when delivery any amendment of a Prospectus is required under the Act, as many copies of or supplement to the Prospectus in final form, before or as thereafter amended or supplemented, as after the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies effective date of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to which the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may shall reasonably be requested), and of all amendments thereto, as the Representatives may reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(vb) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as If at any time when a prospectus relating to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, under the Act any event shall occur have occurred as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, or to file under the Exchange Act so as to comply therewith any lawdocument incorporated by reference in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify the Representatives promptly will and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Representatives) that will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus declared effective as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawsoon as possible.
(vic) The Company will promptly deliver to the Representatives two signed copies of the Registration Statement, including exhibits and all documents incorporated by reference therein, and all amendments thereto, and the Company will promptly deliver to each of the several Underwriters such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and the Prospectus or any amendment thereof or supplement thereto, without exhibits, as the Representatives may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with the Representatives, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares in such jurisdictions as the Representatives may designate and to maintain such qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning of Section 11(a) of the Act) to its security holders, holders and to the Representatives as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration StatementStatement occurs (or not later than 90 days after the end of such fiscal quarter if such fiscal quarter is the last fiscal quarter of the fiscal year), an earnings statement (which need not be auditedaudited but which shall satisfy the provisions of Section 11(a) in reasonable detail, of the Act) covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(viif) Prior During a period of 90 days from the date of the Prospectus, the Company will not, without the Representatives' prior written consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any class of capital stock of the Company of which the Shares form a part (or any securities convertible into, exercisable for or exchangeable for such class of capital stock), and the Company will obtain the undertaking of each person who is an executive officer and/or director as of the date of the applicable Terms Agreement not to engage in any of the aforementioned transactions on their own behalf, other than the Company's sale of Shares hereunder, the Company's issuance of Class A Common Stock upon the exercise of presently outstanding stock options, sales of securities pursuant to the Closing DateCompany's employee stock purchase plan, the grant of options to directors of the Company as provided in the Company's stock option plans and the issuance of shares of Class A Common Stock upon exercise thereof, and in connection with acquisitions.
(g) During a period of three years from the filing with the Commission of any Prospectus Supplement pursuant to Rule 424 of the Regulations, the Company will furnish to the UnderwritersRepresentatives, as soon as they have been prepared by or are available upon request, copies of (i) all reports to the Companyits shareholders, a copy of any unaudited interim and (ii) all reports, financial statements of the Company for any period subsequent to the period covered by the most recent financial and proxy or information statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, filed by the Company otherwise than hereunder or with the prior written consent Commission or any national securities exchange or quotation system upon which the class of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative Company of such Common Stock owned by such person or request which the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for Shares form a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements")part may be listed.
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xivh) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitutecause or result in (i) stabilization of the price of the class of capital stock of the Company of which the Shares form a part to facilitate the sale or resale of such class of capital stock, the stabilization or (ii) manipulation of the price of any securities such class of the Companycapital stock.
(bi) Each The Company will take, and will cause its subsidiaries to take, such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus and will take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act, and the rules and regulations thereunder.
B. Each Selling Shareholders Shareholder severally covenants and agrees with the several Underwriters that, in order to document that during a period of 90 days from the Underwriters' compliance with the reporting and withholding provisions date of the Tax Equity and Fiscal Responsibility Act Prospectus, such Selling Shareholder will not, without the Representatives' prior written consent, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any class of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each capital stock of the Selling Shareholders agrees to deliver to you prior to or at Company of which the Closing Date Shares form a properly completed and executed United States Treasury Department Form W-8 or W-9 part (or other applicable form any securities convertible into, exercisable for or statement specified by Treasury Department regulations in lieu thereofexchangeable for such class of capital stock).
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the several Underwriters that:
(i) The Company will (A) use its best efforts to cause shall comply with the Registration Statement to become effective or, if the procedure in Rule 430A provisions of the Rules and Regulations is followed, to prepare and timely file make all requisite filings with the Commission under Rule 424(b) of the pursuant to Rules 424 and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and shall notify the Representatives promptly (Bin writing, if requested) of all such filings. The Company shall notify the Representatives promptly of any request by the Commission for any amendment of or supplement to the Registration Statement, the Effective Prospectus or the Final Prospectus or for additional information; the Company shall prepare and file with the Commission, promptly upon the Underwriters' request, any amendments of or supplements to the Registration Statement, the Effective Prospectus or the Final Prospectus which, in the Underwriters' opinion, may be necessary or advisable in connection with the distribution of the Shares; and the Company shall not file any amendment to the Registration Statement of or supplement to the Registration Statement, the Effective Prospectus of which or the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or Final Prospectus which is not in compliance with approved by the Rules and Regulations.
(ii) Representatives after reasonable notice thereof. The Company will shall advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission or any jurisdiction or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement Statement, suspending or preventing the use of any Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or suspending the qualification of the Shares for offering or sale in any jurisdiction, or of the institution of any proceedings for that any such purpose. The ; and the Company will shall use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and other such order and, should a stop order or other such order be issued, to obtain as soon as possible the lifting thereof, if issued.
(iiiii) The Company will cooperate with take or cause to be taken all necessary action and furnish to whomever the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applicationsdirect, file such documents, and furnish such information as may be reasonably required in qualifying the Shares for that purpose, provided offer and sale under the Company shall not be required to qualify securities or Blue Sky laws of such jurisdictions as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare the Underwriters may designate and file such statements, reports, and other documents, as are or may be required to will continue such qualifications in effect for so as long a period as may be reasonably necessary to complete the Representatives may reasonably request for distribution of the Shares.
(iviii) The Company will deliver to, or upon Within the order oftime during which a Final Prospectus relating to the Shares is required to be delivered under the Securities Act, the Representatives, from time to time, as many copies of any Preliminary Prospectus as Company shall comply with all requirements imposed upon it by the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement now and all amendments thereto including all exhibits filed therewithhereafter amended, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and by the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunderas from time to time in force, so far as is necessary to permit the completion continuance of the distribution sales of or dealings in the Shares as contemplated in this Agreement by the provisions hereof and the Final Prospectus. If during the such period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur occurs as a result of which, in which the judgment Final Prospectus as then amended or supplemented would include an untrue statement of the Company a material fact or in the reasonable opinion of the Underwriters, it becomes omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserthen existing, not misleading, or, or if during such period it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement the Final Prospectus to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawSecurities Act, the Company shall promptly notify the Representatives and shall amend the Registration Statement or supplement the Final Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(viiv) The Company will furnish without charge to the Representatives and make generally available to its security holdersthe Underwriters copies of the Registration Statement (four of which shall be signed and shall be accompanied by all exhibits), as soon as it is practicable to do soeach Preliminary Prospectus, but in the Effective Prospectus and the Final Prospectus, and all amendments and supplements thereto, including any event not later than 15 months prospectus or supplement prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may reasonably request.
(v) The Company will (A) deliver to the Representatives at such office or offices as the Representatives may designate as many copies of the Preliminary Prospectus and Final Prospectus as the Representatives may reasonably request, (B) for a period of not more than nine months after the Registration Statement becomes effective, send to the Representatives as many additional copies of the Final Prospectus and any supplement thereto as the Representatives may reasonably request, and (C) following nine months after the Registration Statement becomes effective, send to the Representatives at their expense as many additional copies of the Final Prospectus and any supplement hereto as the Representative may reasonably request.
(vi) The Company shall make generally available to its security holders, in the manner contemplated by Rule 158(b) under the Rules and Regulations as promptly as practicable and in any event no later than 45 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration Statement occurs, an earnings statement (which need not be auditedsatisfying the provisions of Section 11(a) in reasonable detail, of the Securities Act covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior The Company will apply the net proceeds from the sale of the Shares to be sold by it as set forth under the Closing Datecaption "Use of Proceeds" in the Final Prospectus and will timely report such use of proceeds in its periodic reports filed pursuant to sections 13(a) and 15(d) of the Exchange Act in accordance with Rule 463 of the Securities Act or any successor provision.
(viii) During a period of five years from the effective date of the Registration Statement or such longer period as the Representatives may reasonably request, the Company will furnish to the UnderwritersRepresentatives copies of all reports and other communications (financial or other) furnished by the Company to its shareholders and, as soon as they have been prepared by or are available to the Companyavailable, a copy copies of any unaudited interim reports or financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale furnished or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, filed by the Company otherwise than hereunder to or with the prior written consent Commission or any national securities exchange or over-the-counter market on which any class of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement may be listed for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentencetrading.
(ix) The Company will use its best efforts will, from time to list time, after the effective date of the Registration Statement file with the Commission such reports as are required by the Securities Act, the Exchange Act and the Rules and Regulations, and shall also file with foreign, state and other governmental securities commissions in jurisdictions where the Shares for quotation on have been sold by the Nasdaq National MarketUnderwriters (as the Representatives shall have advised the Company in writing) such reports as are required to be filed by the securities acts and the regulations of those jurisdictions.
(x) The Except pursuant to this Agreement or with the Representatives' written consent, for a period of 180 days from the effective date of the Registration Statement, the Company will not, and the Company has caused provided agreements (the "Lockup Agreements") executed by each officer of its officers, directors and director, each Selling Shareholder, and each other shareholder and option holder 5% or greater Shareholders providing that for a period of [150] days from the effective date of the Registration Statement, such person will not, offer for sale, sell (other than the issuance by the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, shares of Common Stock pursuant to which each such person has agreed not acquisitions or the exercise of options granted pursuant to offerexisting employee benefit plans and agreements), sellgrant any options (other than pursuant to existing employee benefit plans and agreements), sell short rights or otherwise dispose of warrants with respect to any shares of Common Stock, securities convertible into shares of Common Stock of the Company or any other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition otherwise dispose of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent any shares of DBSI ("Lockup Agreements")Common Stock or such other securities or capital stock.
(xi) The Neither the Company shall apply the net proceeds nor any of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not investdirectors, officers or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company controlling persons, has taken or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or designed to cause or result in, or that which has constituted or which reasonably might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company or facilitation of the sale or resale of the Shares.
(xii) The Company will either conduct its business and operations, and that of its Subsidiaries, as described in the Final Prospectus or, if the Company makes any material change to its or its Subsidiaries' business or operations as so conducted, promptly disclose such change generally to the Company's security holders.
(xiii) The Company will use its best efforts to effect the listing of the Common Stock, subject to notice of issuance, on the Nasdaq National Market on or before the effective date of the Registration Statement.
(b) Each of the Selling Shareholders Shareholders, severally and not jointly, covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Underwriters that:
(i) Such Selling Shareholders agrees Shareholder will cooperate to the extent necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Shareholder will pay all federal and other taxes, if any, on the transfer or sale of the Shares being sold by such Selling Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all things required to be done or performed by such Selling Shareholder prior to the First Closing Date to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement or the Power of Attorney and Custody Agreement.
(iv) Such Selling Shareholder has delivered to the Company an agreement pursuant to which such Selling Shareholder has agreed that during the period of 180 days from the date the Registration Statement is declared effective under the Securities Act, such Selling Shareholder will not, without your prior written consent, offer, pledge, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of (or announce any offer, pledge, sale, grant of an option to purchase or other disposition), directly or indirectly, any shares of Common Stock or securities convertible into, exercisable or exchangeable for, shares of Common Stock.
(v) Such Selling Shareholder will not (i) take, directly or indirectly, prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation for the solicitation of purchases of, the Shares or (iii) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(vi) Such Selling Shareholder will deliver to you the Custodian on or prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations Regulations in lieu thereof).
(vii) Such Selling Shareholder will furnish any documents, instruments or other information which you may reasonably request in connection with the sale and transfer of the Shares.
(viii) Such Selling Shareholder will use such Selling Shareholder's best efforts to comply or cause to be complied with the conditions to the obligations of the Underwriters in Section 7 hereof insofar as such conditions relate to such Selling Shareholder.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior The Company will, for a period of five years from the Closing Date (provided the Company continues to be subject to the Closing Dateinformational requirements of the Exchange Act), deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwriters, as soon as they have been prepared by requirements of such exchange or are available with the Commission pursuant to the Company, a copy of any unaudited interim financial statements of Act or the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the ProspectusExchange Act.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder hereunder, under the Company's Incentive Plan and Stock Purchase Plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentenceAlex. Brown & Sons Incorporated.
(ix) The Company will use its best efforts to list cause the Shares to be approved for quotation on the Nasdaq Stock Market (National Market).
(x) The Company has caused each officer officer, director and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed not shall agree not, except for the transactions contemplated under this Agreement, to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI Alex. Brown & Sons Incorporated ("Lockup Loxxxx Agreements").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries Subsidiary to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for Common Stock or derivative of Common Stock (or agreement for such) owned by such Selling Shareholder or request for the registration of the offer or sale of any of the foregoing (or as to which such Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of Alex. Brown & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available to not consolidated in the Company, a copy of any unaudited interim 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusstatements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 ___ days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).BT Alex. Xxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Decrane Aircraft Holdings Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not no later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as soon as they have been prepared by or are available amended. The Company will deliver to the CompanyRepresentatives similar reports with respect to significant subsidiaries, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing as that term is defined in the Registration Statement Rules and Regulations, which are not consolidated in the ProspectusCompany's financial statements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided, however, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the exercise of such options and stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, and each other shareholder and option holder of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form provided by DBSI, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that, in order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).or
Appears in 1 contract
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, including documents incorporated by reference in any of the foregoing, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")BT Alex. Browx Xxxorporated, provided, however, except that the Company may may, without such consent, (iA) grant stock options, restricted stock or other issue shares upon exercise of (1) options outstanding on the date of this Agreement issued pursuant to the Company's currently existing stock-based awards to employees, consultants or directors pursuant to the terms of its compensation plans in effect and (2) warrants outstanding on the date hereof of this Agreement, and described in the Prospectus(B) grant options, (ii) issue offer to sell and sell shares of its Common Stock to its employees, directors and consultants pursuant to: (A) the exercise of such options and to its currently existing stock-based awards and (B) the exercise of any employee stock options outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement) equivalent to those set forth above in this sentencecompensation plans.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each Selling Shareholder, director and each other shareholder and option holder specific shareholders of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreementagreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed shall agree not to offersell, offer or contract to sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock Shares or derivative of such Common Stock Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 180 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI BT Alex. Browx Xxxorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of Shares as set forth in the Prospectus and shall make such disclosures in reports filed with the Commission with respect to the sale of such Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Browx Xxxorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company .
Appears in 1 contract
Samples: Underwriting Agreement (Tweeter Home Entertainment Group Inc)
Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the RepresentativesRepresentatives , from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed three signed, xeroxed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including any documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and Regulations, Regulations and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(vii) Prior to The Company will, for a period of five years from the Closing Date, deliver to the Underwriters copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders or filed with any securities exchange pursuant to the Underwritersrequirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or that term is defined in the Rules and Regulations, which are available to not consolidated in the Company, a copy of any unaudited interim 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectusstatements.
(viii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of the Company's Common Stock or derivative of such Common Stock (or agreement for such), including the filing of any registration statement under the Act (other than registration statements on Form S-8) or any other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock of the Company, will be made for a period of 180 days after the date of this Agreementthe Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. ("DBSI")BT Alex. Brown Incorporated, providedexcept that xxx Xompany may, howeverwithout such consent, that the Company may (i) grant stock options, restricted stock or other stock-based awards to employees, consultants or directors pursuant to the terms of its plans in effect on the date hereof and described in the Prospectus, (ii) issue shares of its Common Stock pursuant to: (A) the upon exercise of such options and stock-based awards and granted under its stock option plans, (B) the upon exercise of any employee stock options warrants outstanding on the date hereof, and (iii) issue shares of its Common Stock or other securities convertible into or exchangeable or exercisable for shares of its Common Stock or derivative of its Common Stock (or enter into agreements for such) in connection with one or more acquisitions by the Company of assets, capital stock or businesses of unaffiliated persons or entities (whether by mergers, exchanges of stock or otherwise), or in connection with the entering into of one or more strategic partnering agreements with unaffiliated entities, provided that, in the case of this clause (iii), each person or entity receiving any such securities of the Company (or entering into any agreement for such) pursuant to any such acquisition or agreement shall enter into a letter agreement with transfer restriction terms (including a lock-up period continuing for 180 days after the date of this Agreement, (C) equivalent in connection with acquisitions of businesses, (D) in connection with conversion of shares of Restricted Common Stock to those set forth above in this sentenceCommon Stock or (E) pursuant to employee benefit or compensation plans existing on the date hereof.
(ix) The Company will use its best efforts to list list, subject to notice of issuance, the Shares for quotation on the Nasdaq National MarketNew York Stock Exchange.
(x) The Company has caused each executive officer and director, each Selling Shareholder, and each other shareholder and option holder director of the Company listed on Schedule III hereto to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the form provided by DBSIUnderwriters, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for such Common Stock or derivative of such Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) or request the registration for the offer or sale of any of the foregoing for a period of 180 days after the date of this Agreementthe Prospectus, directly or indirectly, except with the prior written consent of DBSI BT Alex. Brown Incorporated ("Lockup AgreementsAgrexxxxxs").
(xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall make file such disclosures in reports filed with the Commission with respect to the sale of such the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use use, the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries Acquired Companies to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that:
(i) No offering, in sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request for registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Shareholder otherwise than hereunder or with the prior written consent of BT Alex. Brown Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
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